Oregon State Bar Bulletin AUGUST/SEPTEMBER 2013
Law & Life
Common Sense and
A New Judge's Perspective on the Bench
By the Hon. Jodie Mooney
Some lawyers say (off the record) that there are too many ineffective judges on the bench. Judges may be considered ineffective for any number of reasons, but these particular complaints are often associated with judges who (it is believed) sought judicial office to replace a failing practice, to get a stable salary or to “slow down.” Some say that such judges have become barriers to justice because they do not listen or because they don’t work hard enough. I shared that view myself at times.
As a relatively new judge, however, my perspective is changing. Self-serving? Perhaps. But I have seen the work of a trial judge from both sides of the bench now. I am coming to believe that the real difference between a “good judge” and a “bad judge” has as much to do with considering the consequences of a decision as it does with deciding the consequences for a violation of the law. And, understanding the difference between the two is key to rendering fair, lawful decisions. My goal is to share a few of my early experiences as a new judge in the hope that they might provide useful insight for lawyers who practice in our courtrooms.
I decided to apply for a judicial appointment because I thought I had what it would take to be a fair and impartial judge. I was not looking to slow down, and the salary wasn’t all that attractive to me. I just thought I could be a good judge. After all, I had litigated complex civil cases. I worked in-house for a health care corporation and learned to navigate complex regulatory schemes in order to advise the CEO and the board of directors. I had no trouble making hard decisions. But what I had not considered was that my work in a focused area of the law was no guarantee of success as a judge in a court of general jurisdiction.
The scope of work, culture and dynamic of working with a small group of “independently elected officials” has tested me in ways I had not expected. I have had to reach back and draw upon the prelaw strategies and strengths that got me through things like neighborhood games of kick-the-can, my first paper route, The Brothers Karamazov and 25 years of marriage: common sense, instinct and compassion; a willingness to ask for help and to learn; and the ability to recognize, acknowledge and correct a mistake.
Judges work within a structure steeped in time honored traditions and yet constrained by the mundane reality of expanding dockets, increasing numbers of pro se litigants and never-ending budget woes and staff cutbacks. Lawyers — and their clients — would benefit from considering the dynamic tension of these and other factors because they impact a judge’s day-to-day workload. As a trial lawyer I worked long but flexible hours. As a trial judge, I work fewer hours overall, but my days are more structured. Between morning dockets, general trial call assignments, settlement conferences and sentencings, my time between 8:30 a.m. and 5 p.m. is very full. I might start by signing a search warrant, processing default motions and conducting a contested show cause hearing and then shift into a jury trial at 10 a.m.
My first day on the bench began with arraignments. The presiding judge threw me right into the fray — even before my public investiture. She swore me in early and put me to work. Keep in mind that I had been a civil trial attorney. More specifically, I was an insurance defense lawyer who spent a lot of time defending medical malpractice claims. I had never been to an arraignment. I read the “Bench Book” section on arraignments and wrote down the main points that I needed to cover with each defendant — correct name/DOB, pending charges, constitutional rights, assigning counsel and, finally, setting the next court date. Although arraignments are administrative and routine, they were anything but that for me. I plugged along, but when one of the defendants declined counsel, oh, boy… that threw me off. Everyone’s eyes were on me. A clarifying thought, a bit of perspiration and a few more questions about why in the world he would want to proceed without a lawyer in the face of charges that could result in up to five years in prison. He allowed me to appoint counsel, we moved on, and I learned the routine.
Later that week I was assigned FAPAs (Family Abuse Prevention Act restraining order petitions). Okay, did I mention that my “complex” civil practice did not include family law? I sat across the table from the first pro se petitioner and read her petition. Now, I had read ORS 107.700, et. seq., and I understood the elements required to issue a restraining order. And, I understood the importance of this ex parte tool for persons stuck in abusive relationships with no other way out. What I hadn’t anticipated was the overwhelming sense of responsibility and, frankly, power, I would feel when I realized I could unilaterally grant custody to her and cut off all contact with the father — based solely on her statements to me. The extreme nature of the remedy, the lack of due process at that initial stage and the magnitude of its potential impact on the child caught me off guard. What to do? Take a five-minute recess. Whom to call? Any available judge. Next thing I knew, a more senior judge came to my chambers and offered to help. We re-entered the courtroom together and I observed as she walked through each petition with each petitioner. Some restraining orders were granted and others were denied. The custody decision that threw me off was deferred to a time when the father could be present for a hearing. It made sense. The gracious assistance from a colleague confirmed what my gut was telling me and got me through that morning. After that, I did the FAPA docket on my own.
I covered traffic court the next month. Other than mailing in a check or two for speeding tickets received over the course of my driving career, I had never even thought about traffic court. The docket moved quickly and I felt almost “in charge” until I came to a wildlife violation: “no contest” to taking an unclipped salmon. And, then, I watched the 65-year-old gentleman practically break down when I suspended his fishing license. I reduced the fine from the $6,250 noted on the ticket to $500, even after he told me he would rather have paid a much higher fine and kept his license. I suspended his fishing license because that is what the law required. I did reassure him he could continue to take his grandson fishing — so long as he did not do any fishing himself. And he needed to teach his grandson the importance of returning wild salmon to our rivers. And then a second wildlife ticket: “no contest” to holding a black tail deer. The “good Samaritan” rescued dogs and cats and seemed the obvious person to call when the local storeowner saw the injured fawn in his parking lot. She had actually given the deer a name while nursing it back to health. Domesticated, it could no longer be released into the wild. The state took the deer and “disposed” of it. She cried and promised she would never make that mistake again. I imposed the lowest fine I could.
Trial call is always interesting. In Lane County, we have a “master calendar” and, therefore, you never know what the presiding judge may send your way on any given day. There are always dissolutions to be assigned, either with or without lawyers. Maybe a termination of parental rights case. A criminal trial — usually with a jury, unless waived. Or you may get some variety of civil trial — an employment case, personal injury, breach of contract, foreclosure, property dispute — the list goes on. As an attorney showing up to “trial call,” I did not fully understand (or think about) what it might be like to be handed a stack of motions and trial briefs at 9:50 a.m. and be expected to rule on the motions at 10 a.m., begin jury selection at 10:30 and have preliminary instructions ready to go by lunchtime. All this on a case the lawyers have spent untold hours preparing and which the judge has probably never looked at before.
I have been assigned a few personal injury trials. The truth is that I don’t remember much about them. The testimony was testimony I’d heard before and the arguments were arguments I’d heard and made before. There is comfort in the familiar, and the only real surprise for me was how easy it was to remain emotionally disconnected from the parties in those cases.
Not so in the criminal cases. The first assault trial over which I presided involved a young man who assaulted his girlfriend with an umbrella. The evidence was clear, the assault was brutal and the defendant was unremorseful. The jury convicted him and I sentenced him to several years in prison. After that, I went to my chambers and immediately felt sick. Not because he did not deserve prison. He did. It was that the final step in the process was mine. My accountability. And my visceral reaction to depriving a man of his liberty, even when well deserved, was distinctly different than my reaction to reading a verdict that awarded $50,000 in damages.
These stories and others like them populate the landscape of my first two years on the bench. The parade of humanity and stream of emotions that grace my courtroom on a daily basis are palpable. Experience as a trial attorney did not prepare me for this job. It did not prepare me for the daunting task of listening to hours (and hours) of testimony on a case I had not seen before and having to remember, synthesize and distill that testimony down to its salient points and then render a decision by the end of the day that makes sense, is enforceable and comports with the law. And it had not occurred to me as a trial lawyer that this is what we ask our judges to do every day. Lawyers who think about this and respond by presenting their cases in clear, focused segments are more likely to get results that make sense to their clients. While background information can provide context, burying one’s case in irrelevant testimony is not helpful; it can distract the judge from the issues that actually matter. Citing too many cases in a trial memo can create confusion or, worse, the impression (perhaps accurately) that the law does not support your position.I read (or re-read) the applicable statutes and case law for every case I am assigned. I do what makes sense to me, case by case. I do not presume to know the facts of any case before they are presented, and therefore I listen carefully to the testimony of each witness. I am under no illusion that the law, when properly applied to the facts, will always result in an outcome that feels right to the parties. I do not expect to please all the parties or their lawyers. Justice may be blind, but every decision I make is seen, heard and felt by the parties before me in full, living color.
My decisions mean the difference between who gets the kids on Friday, who reports to jail before 4 p.m., and whether your neighbor is entitled to cross over your property to get to his. I hope I never get used to hearing the details of an assault, and I hope I never lose sight of the gravity of a decision that sends an individual to prison. I hope I never forget that it is an extreme remedy to cut off a parent’s contact with his or her children. And I hope I always remember that, to some people, fishing licenses and baby deer can mean more than money ever could.
ABOUT THE AUTHOR
The Hon. Jodie Mooney is a circuit court judge in Lane County.
© 2013 Hon. Jodie Mooney